We all make important decisions and engage in regular financial transactions without giving a second thought about our capacity to do so.  But what if you suddenly lost the ability?  What would happen?

While most of us don’t spend a lot of time thinking about it, unexpected things can and do occur.  For instance, you could end up injured in an accident or develop a condition that affects your mental capacity.  While you can’t predict the future or prevent catastrophes, with good planning you can safeguard your interests by creating a durable power of attorney.

A durable power of attorney is a critical component of your estate plan because it can significantly impact you at a difficult time in your life.  If you are incapacitated or disabled and you don’t have a durable power of attorney, someone may need to petition a court to appoint a guardian or conservator to make decisions on your behalf.  This process is not only time-consuming, but it is also costly and can be a frustrating process for everyone involved.  Not to mention, a guardianship or conservatorship means that the court would become involved in your personal affairs—something that could be avoided with good planning.

A durable power of attorney can give you peace of mind that if you can’t speak up for yourself, someone you have chosen can step forward to protect your interests. This person is referred to as an agent, and you can choose anyone you want: from your spouse or child to a trusted friend or a professional fiduciary.

Your agent will be entrusted to act in your best interest and carry out the actions that are allowed by your durable power of attorney.  Since this document can grant powers such as control over financial accounts, buying and selling real estate, or even representing you in litigation it’s important to choose someone who is dependable.  Being an agent comes with a lot of responsibility, so it’s a good idea to talk with the person you choose before appointing them.  It’s also important to ensure that your chosen agent is willing to serve in the role and that they understand your wishes.

While many essential powers are automatically provided to your chosen agent by the Washington statute that governs powers of attorney, you may want to grant them the ability to take additional actions or limit their options in some way.  While there are forms available on the internet, a durable power of attorney is not a one-size-fits-all document, and many important considerations tend not to be included in the generic forms available from online sources.

For instance, many Washington residents rely on planned gifting to mitigate exposure to the Washington state estate tax, which currently has an exemption amount of $2,193,000.  If you don’t specifically allow your agent to make the types of gifts that you had planned to provide to your loved ones as you age, the legacy you planned to pass on to your family could be reduced by taxes significantly if you lose the capacity to make gifts.

It could also become necessary for your agent to take protective measures such as placing your assets into a trust for your benefit.  If you don’t specifically grant this power in your durable power of attorney, your agent could have to petition a court to do so—a costly and uncertain measure.

There are many considerations that are important in designing a durable power of attorney fit for your circumstances.  Along with appointing someone to manage your financial affairs, you can also appoint an agent to make important healthcare decisions for you if you’re unable to make them yourself.  If you don’t have one already, the Estate Planning team at Lasher are here to help you draft a durable power of attorney that will meet your unique needs and keep your best interests in mind.